Tag Archives: sb822

Network neutrality advocates faced off against the Federal Communications Commission and its telecoms industry partners in a federal appeals court in Washington, D.C. on Friday. For more than four hours, a panel of three federal judges grilled both sides as they considered whether the FCC acted “arbitrarily and capriciously” when it rolled back net neutrality rules in 2017.

The central question is whether broadband service is a simple telecommunications service – like phone service – or a value-added information service. FCC lawyer Tom Johnson insisted that the traffic management and routing technology that enables communication via the Internet – the domain name system and caching – is fundamentally different from the traffic management and routing technology that makes it possible to dial a phone number.

Judge Patricia Millett didn’t seem to buying that argument…

Millett: They both have the capability, the capability of acquiring information, receiving information, through a telephone as much as…

Johnson: Under the broader theory that these are broad statutory provisions in which we are able to make different classification decisions based on the fact that we’re talking about different services here.

Millett: That’s what I’m trying to figure out, are you talking about different capabilities between phones and if someone uses Facetime?

Johnson: Yes, your honor, we just don’t think that phone service in offering a pure transmission pathway for ordinary voice communication offers the same dynamic experience that broadband does in accessing the Internet, but in addition it also offers…

Millett: I hear you saying those words, I’m really trying to make sure I’m understanding what the difference is, because people use telephones to acquire all kinds of information…If I want to get information from my pharmacy – I’d like to have something refilled – I can call over the phone and push a bunch of buttons and eventually I’ll have a prescription refilled. I can also go on the website and type in and tell the doctor’s office I’d like a prescription refilled. But it seems to be the exact same functionality. One is voice and one is typing, but that can’t be difference.

Johnson never directly answered Millett’s question. His defence was that there was sufficient ambiguity in federal law to create an opening for the FCC to exercise its discretion as the federal government’s expert agency in these matters. Typically, federal courts defer to that – they don’t consider whether an expert agency made the best decision, but rather whether the decision reached was one of many possible and reasonable interpretations of the facts and the law.

The plain fact is that broadband is a telecommunications service. People use it to transmit and receive information between two point without changes. The give and take at Friday’s hearing indicates that the three judges understand that point well.

California broadband policy will be in the same legislative hands in 2019. Senate and assembly leaders announced committee assignments for the new term, and the chairs of the committees that dealt with major telecoms issues over the past couple of years remain the same.

Miguel Santiago (D – Los Angeles) retained his seat as chair of the assembly communications and conveyances committee. He didn’t make it into the top ranks – no leadership post or a seat on the powerful rules, appropriations or budget committees. But he’ll be able to continue to keep deep pocketed patrons, like AT&T, Comcast and Charter Communications, happy. As he tried to do when he (temporarily) blocked senate bill 822 – the net neutrality law – last year.

Santiago’s principal wingmen are back, too. Evan Low (D – Santa Clara) and Eduardo Garcia (D – Imperial) are once again on the communications and conveyances committee. Besides backing Santiago when he gutted SB 822, Low has (unsuccessfully) carried a copper-killer bill for AT&T and Garcia turned the California Advanced Services Fund into a $300 million piggybank, also for AT&T as well as Frontier Communications and cable companies. Garcia kept his seat on the appropriations committee; Low moves up to chair of the business and professions committee. Jay Olbernolte (R – San Bernardino), who also opposed SB 822, is back as the vice chair of the communications and conveyances committee.

The assembly privacy and consumer protection committee remains in the hands of Ed Chau (D – Los Angeles). He’s already introduced a placeholder bill that is a likely vehicle for amending the new privacy law that he authored last year. It was passed in order to block a tougher initiative that was otherwise headed to the November ballot. How he responds to the mounting pressure to soften it from tech industry interests is a key question for the coming session.

Three U.S. senate democrats are calling out the four major mobile carriers on their throttling and prioritisation policies. Senators Edward Markey (D – Massachusetts), Richard Blumenthal (D – Connecticut), and Ron Wyden (D – Oregon) sent joint letters to the CEOs of AT&T, Sprint, T-Mobile and Verizon, asking them to explain results from an Internet traffic testing app that indicate they’re deliberating slowing some traffic down…

We write to express our concern that mobile carriers may be inappropriately throttling and prioritizing internet traffic from common mobile apps without the knowledge of their customers. Through the use of the app Wehe, researchers recently identified numerous instances of cellular providers throttling video and communications services.’ Such practices would violate the principles of net neutrality and unfairly treat consumers who are unaware that their carriers are selecting which services receive faster or slower treatment…In light of this study, we write to ask you about your policies regarding the treatment of internet traffic.

The companies are not obligated to respond and, given that the U.S. senate will remain in the control of republicans, the threat of a hearing or other compulsory action isn’t readily apparent. But it could be embarrassing, and it’s a good bet that the three senators will make the most of that opportunity, should it arise.

On the other hand, if they do respond, it’ll be interesting to see what they say. And particularly interesting if AT&T CEO Randall Stephenson cops to throttling the three video services – YouTube, Netflix, and NBC Sports – that the letter calls out. His chief staff lobbyist in Sacramento, Bill Devine, claimed that AT&T does not “degrade Internet traffic” during hearings on senate bill 822 – California’s net neutrality law – earlier this year. He didn’t stick to the truth in other respects; the question now is whether his boss will try to bluff it out too.

With some exceptions, SB 460 would have required state and local agencies to buy broadband service only from providers that abide by net neutrality principles. Given that it’s the big telecoms companies – AT&T, particularly, but also Comcast, Charter and Frontier – that dominate the government services market, it would have been a powerful incentive for them to stick to those rules.

It’s also much safer ground for state-level action. SB 822 is on hold, following a federal court challenge, and it could be years before it has any effect, even if it survives the legal process. But SB 460 was about public procurement policy, and that’s something that federal agencies, particularly the Federal Communications Commission, don’t have much, if any, control over.

The FCC’s top staff lawyer, general counsel Tom Johnson, conceded as much during a recent appearance at a Washington, D.C. event, according to a story in Politico…

Although the FCC believes it can override state net neutrality laws like the one in California, it hasn’t yet settled the question of whether it can challenge efforts to make net neutrality a requirement for state government contracts, Johnson said. “The commission has not taken an explicit position,” he said, adding the FCC hasn’t sought to intervene in such procurement-related actions for that reason.

De Leon never seemed to have a particular passion for net neutrality. He backed several bills aimed at high profile issues this past year, as he tried to gain some traction in his ultimately futile attempt to beat Diane Feinstein in the race for her U.S. senate seat. He had a hard time articulating a coherent argument for his bill; during one committee meeting, Wiener had to step in and explain why both bills were needed.

SB 460 was necessary because SB 822 was, and is, resting on shaky legal ground. With it off the table for the foreseeable future and SB 460 trashed, California will end 2018 exactly the way it began it: with no net neutrality guarantees at all.

The one exception is senator Kevin de Leon (D – Los Angeles). He ran out of time on California term limits and challenged U.S. senator Diane Feinstein. He’ll be unemployed at the end of the month, having lost to Feinstein, 46% to 54%. De Leon introduced one of two network neutrality bills that moved through the legislature this year, senate bill 460. Senator Scott Wiener (D – San Francisco), carried the other one, SB 822, which was a much more thoroughly thought out net neutrality measure.

SB 822 passed the legislature, was signed by governor Jerry Brown and was then put on hold by attorney general Xavier Becerra, in response to a court challenge by telecoms lobbyists and the Trump administration. SB 460 was trimmed back, and would have required state and local agencies to only buy broadband service from providers that abide by net neutrality principles. It was an important bill nevertheless, because it had a better chance of withstanding lawsuits. Despite that – or perhaps because of it – SB 460 died as the legislative session came to an end in August.

Wiener didn’t stand for election this year – his current term ends in 2020. But other key players in the net neutrality struggle did, and they were all reelected by substantial margins, whether or not they were helpful to the cause. Becerra beat his republican opponent by 61% to 39%. Assemblyman Miguel Santiago (D – Los Angeles), who tried to kill the net neutrality bills in the committee he chaired, walked home with 71% of the vote in his reelection race. His two wingmen in that attempt – assemblymen Eduardo Garcia (D – Imperial) and Evan Low (D – Santa Clara) – also won landslide victories.

So did assemblyman Rob Bonta (D – Alameda), who whomped his republican opponent 87% to 13%. Bonta deserves much of the credit for saving both Wiener’s and de Leon’s net neutrality bills in the assembly. He brought the warring sides together, after Santiago was slammed by online activists for his defence of big telecom interests.

Senator Ben Hueso (D – San Diego) will be back, too. He also won a lopsided contest against a republican challenger by 62% by 38%. Hueso sat out the net neutrality fight, but as chair of the senate’s primary telecoms committee, he has also been a good friend to AT&T, Comcast, Charter and the rest. Last year, he carried and vigorously advocated for senate bill 649, which would have given telecoms companies the right to attach wireless equipment to city and county-owned street light poles for below market, bargain basement prices.

The court’s ruling has no practical effect at the moment. Those rules were repealed by the new republican-majority FCC last year. But a federal appeals court did hear the challenge launched by telecommunications companies and said the FCC acted within its authority in 2015. That could have implications for a couple of other big net neutrality cases.

Telecom industry lobbying fronts and the current FCC asked the supreme court to summarily overturn the appeals court’s action. If the 2017 net neutrality repeal is thrown out by the District of Columbia circuit – the appeals court handling both cases – then the 2015 decision goes back into force, which would be inconvenient for them. In arguments submitted last month, the cable and telco lobbyists claimed that allowing the 2015 rules to lie dormant would make it harder for them to defend the gift they got from the FCC in 2018…

Because various parties challenging the 2017 Order…are currently attempting to use the D.C. Circuit’s decision upholding the 2015 Order to support their challenges to the 2018 Order. As that fact demonstrates, absent action by this Court, the D.C. Circuit’s unreviewed and now unreviewable decision upholding the 2015 Order threatens to have ongoing consequences in the litigation of highly significant legal and policy issues.

They’ll have to live with those fears.

The supreme court’s ruling also tells us something about California’s net neutrality law, which is on hold after the same cast of characters – Trump administration lawyers, the FCC and telecoms lobbyists – challenged it in a Sacramento-based federal court. California attorney general Xavier Becerra backed down and iced the law until the 2017 FCC decision is fully litigated. This latest supreme court ruling comes three and a half years after the 2015 FCC decision, and if it had chosen to hear the case, it would have dragged on well into next year.

In other words, it’s going to be a long time before any net neutrality rules – Californian or federal – take effect, if they ever do.

But not all. The study identified more than 800,000 unique comments that could be reasonably attributed to real people. Nearly all of those comments – 99.7% – urged the FCC to keep the 2015 net neutrality rules in place, with 14% of the total coming from California. The FCC didn’t bother to do that level of analysis – the commission’s republican majority preferred to highlight the relatively few anti-net neutrality comments when it repealed the 2015 rules last year.

The study also found that geeky details of telecommunications regulation aren’t so arcane any more, and interest in and knowledge of those details are at least as prevalent in rural areas as in urban areas…

Support for net neutrality protections is geographically widespread. Contrary to assertions that rural voters don’t care about net neutrality, the reports show that ​citizens in rural areas who have extremely limited choice of broadband providers are concerned about what happens if their only choice of broadband provider is allowed to block, throttle or create paid fast lanes.

Contrary to assertions that net neutrality supporters don’t understand the issue, the reports show that commenters grasp the issue​​, including many referencing the once-arcane issue of whether the FCC classifies broadband providers under Title I or Title II of the Communications Act.

It will be a long time before California’s new network neutrality law will be enforced, if it ever is. California attorney general Xavier Becerra cut a deal yesterday with the Trump administration and lobbyists who front for a long list of telecoms companies, including AT&T, Charter Communications, Comcast and Frontier Communications. In return for their pledge not to pursue their court case against the law, Becerra agreed not to enforce the new law until a separate legal challenge to the Federal Communications Commission’s decision to repeal its own net neutrality rules has worked its way through the system and, after that, until the Sacramento court hearing the case against senate bill 822 decides whether or not to block it.

The reason given was that all involved – California, the federal justice department and telecoms companies – wanted “to avoid a waste of judicial and [their own] resources”.

That could take years. The District of Columbia appeals court hearing the case against the FCC is scheduled to hear oral arguments in February, with the expectation that a decision would come later on in 2019. If – when – that decision is appealed to the federal supreme court, SB 822 would stay on ice until a final-final ruling is issued. That could take a while. As a point of reference, the legal challenge to the FCC’s 2015 net neutrality rules (that were scrapped in 2017) has been going on for three and a half years, with no end in sight.

Becerra also promised “not to not take any action to enforce” the law, “including through participation in any private action seeking to enforce senate bill 822”. Which implies that private lawsuits are still possible, as allowed by the Californian consumer rights law that SB 822 was grafted onto. Even if that were true, though, I doubt private lawsuits will get very far until the legal cloud over SB 822 is lifted.

In a deal reached with the federal justice department and lobbyists for major telecoms companies, California attorney general Xavier Becerra agreed not to enforce senate bill 822 when it takes effect on 1 January 2019. In return, the telecoms companies and the Trump administration will push the pause button on their challenges to the law in a Sacramento federal court.

The plan is to wait until a federal appeals court in the District of Columbia rules on whether the Federal Communications Commission acted properly when it repealed net neutrality rules last year. It will be several months before that happens. If, as you might expect, that decision is further appealed, then SB 822 will remain on hold until the federal supreme court has its say.

If the DC court says the FCC’s net neutrality rollback is valid, the California suit will go ahead. Whether SB 822 also takes effect at that point will likely be determined by the federal judge hearing the case in Sacramento.

On the other hand, if the DC appeals court throws out the FCC’s decision, then the 2015 federal net neutrality rules would presumably be back in effect.

Sources familiar with the negotiations say government officials and representatives from USTelecom, CTIA, NCTA and the American Cable Association would propose delaying litigation over the state’s law while the D.C. Circuit Court considers the challenge to the FCC’s repeal of the federal net neutrality rules. In exchange, California would agree not to enforce its state law in the meantime.

Tomorrow is the deadline for Becerra to respond to the court challenges to senate bill 822 filed by the federal justice department and several front organisations that lobby on behalf of big cable and telephone companies.

A decision in the lawsuit contesting the Federal Communications Commission’s repeal of net neutrality rules last year would clarify a lot of the issues at stake in the California challenge. But it’ll come no sooner than next year, and could be even further out.